COMMONWEALTH vs. GREGORIO LOPEZ.
SJC-11330
Supreme Judicial Court of Massachusetts
July 8, 2016
474 Mass. 690 (2016)
Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, & HINES, JJ.
Suffolk. March 11, 2016. - July 8, 2016.
At а murder trial, the judge did not abuse his discretion in excluding evidence of the victim‘s prior violence against the defendant‘s girl friend, and no violation of the defendant‘s constitutional right to present a defense arose thereby, where the defendant failed to make a sufficient proffer as to the prior acts of violence, and where there was insufficient evidence to support a theory of self-defense, defense of another, or sufficient provocation. [695-699]
At a criminal trial, the prosecutor in closing argument did not improperly invite the jury to draw inferences from the absence of evidence regarding the victim‘s prior violence toward his girl friend (evidence that the Commonwealth successfully had sought to exclude), and even if the prosecutor‘s statements had been improper, the defendant suffered no prejudice from them. [699-700]
This court did not address an argument that state of mind should be considered an element of murder on a theory of extreme atrocity or cruelty, where the defendant also had been convicted on a theory of deliberate premeditation. [700-701]
INDICTMENTS found and returned in the Superior Court Department on May 15, 2009.
The case was tried before Patrick F. Brady, J.
David Keighley for the defendant.
Sarah Montgomery Lewis, Assistant District Attorney (David Fredette, Assistant District Attorney, also present) for the Commonwealth.
SPINA, J. The defendant, Gregorio “Mikey” Lopez,1 appeals from his conviction of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty.2 The defendant shot and killed his girl friend‘s former boy friend in the
1. Background.
The jury could have found the following facts. At the time of the shooting, the defendant was staying with his girl friend, Desirae Ortiz, in one bedroom of a five-bedroom apartment on Mozart Street in the Jamaica Plain section of Boston. Four additional people lived in the apartment, each renting a separate bedroom. The tenants shared a kitchen and a bathroom. Insofar as relevant here, Ortiz lived, and the defendant stayed, in one bedroom, Jenicelee Vega lived in another bedroom, Moisés Rivera lived in a third bedroom, and Gricelle Alvarado and her infant son lived in a fourth bedroom. Vega and Alvarado are cousins. The other individuals living in the apartment did not know each other prior to occupying the apartment. The defendant, Ortiz, Vega, Rivera, and Alvarado were all home the morning of the murder.
The defendant and Ortiz met during the winter of 2008-2009 and the defendant began to stay frequently with Ortiz on Mozart Street beginning shortly after February, 2009. Before dating the defendant, Ortiz had had a relationship with the victim. Thеy had met when they were fourteen years old and had begun dating shortly thereafter. They were no longer dating at the time of the murder. However, Ortiz would speak with the victim in the months prior to the murder using the telephone at the house of their mutual friend. The defendant had knowledge of Ortiz‘s prior relationship with the victim but did not know that she was speaking recently to the victim on the telephone.
On March 10, 2009, photographs from a Massachusetts Bay Transportation Authority surveillance video camera showed the victim at the Massachusetts Avenuе station at 12:34 A.M. and
The defendant and Ortiz were asleep. Ortiz was awakened by a knock on her bedroom door and the sound of the bedroom door opening. At first, she did not know who it was. She got up and walked toward the door, and realized that it was the victim. Ortiz was not expecting him that night. The victim forced himself into Ortiz‘s bedroom and Ortiz turned on the light. As Ortiz turned on the light, the victim saw the defendant in the bed, naked. The victim, shocked by the presence of the defendant, threatened him. The victim said “he was going to blow his head off.” The victim said that Ortiz was his “wife.” The defendant did not respond. Ortiz did not see the victim with a weapon, nor did she see him hit the defendant. At this point, Ortiz wanted the victim to leave, so she told the defendant that shе was going to speak to the victim outside. Ortiz left her cellular telephone in the bedroom. She and the victim proceeded to the landing outside the front door of the apartment, shutting the door behind them. The defendant remained in the bedroom. The victim and Ortiz were on the landing for approximately forty-five minutes. Ortiz and the victim did not shout, yell, or argue.
Meanwhile, at 1:35 A.M., Vega awoke when her cellular telephone rang. The caller identification indicated that the call was from Ortiz‘s cellular telephone. When Vega answered her cellular
At approximately 1:51 A.M., while she was in Alvarado‘s bedroom, Vega received another telephone call from the defendant, who was still using Ortiz‘s cellular telephone. He told her that he was around the corner. At one point while the defendant was not there, Alvarado became “curious” so she went to look through the peephole of the front door. She saw Ortiz and the victim on the landing.4 She then returned to her bedroom. At approximately 2:05 A.M., Vega received a third telephone call from the defendant. He told Vega to tell the “guy” not to go anywhere and that he was on his way. After the telephone calls, Vega went back to her room while Alvarado continued to get ready to leave the apartment. A short time later, Vega saw the defendant enter the house through the back door. She saw a “long, brown” gun in his hand that looked like a shotgun. Alvarado saw the defendant walking down the hallway with a gun that looked like a rifle. When she saw the defendant, Alvarado yelled at him to “stop, hold on” and to allow her and her son to leave. At this time, the defendant was standing about two feet away from the front door. The defendant responded, “Go ahead, go get your little man.”
Alvarado returned to her bedroom, picked up her son, and started to walk toward Vega‘s bedroom, walking past the defendant. Alvarado knocked on Vega‘s bedroom door and as Vega opened the door, she saw the defendant with his hаnd on the doorknob, looking through the peephole of the front door. While the defendant was looking through the peephole, Vega did not hear fighting or shouting coming from the landing. As Alvarado was entering the room and before Vega closed the door, Alvarado heard the front door open and she looked back to see the defendant raise the
Rivera then saw the defendant pull the victim to the floor and begin to kick and curse at him. The defendant walked toward Ortiz‘s bedroom and then rеturned to the landing. The defendant began to grunt at the victim. Rivera then saw the defendant leave the landing, return, and kick the victim again. Ortiz also testified that the defendant returned to the landing three times, each time kicking and cursing the victim. The defendant then left the apartment through the back door. While leaving, he told Ortiz that he was trying to protect her.
Ortiz returned to the landing and attempted to perform cardiopulmonary resuscitation on the victim. The victim tried to speak to Ortiz, but his speech was “very slurred” and he struggled to breathe. Alvarado, whilе still in Vega‘s room, telephoned 911, as did Rivera. When the police arrived, about five to ten minutes after the shooting, the victim was on the floor of the landing with a large gunshot wound to his lower right chest area. The victim also had small abrasions on his forehead and chin. The victim was pronounced dead at the scene between 2:15 A.M. and 2:30 A.M. The cause of death was determined to be a shotgun wound to the torso, with injuries to the liver, gallbladder, bowel, pancreas, aorta, and inferior vena cava.6
Prior to the commencement of trial, the trial judge allowed a motion in limine, filed by the Commonwealth, to exclude evidence of the victim‘s prior violence toward Ortiz.7 The defendant argued that evidence of the prior violent relationship between the
At the close of the Commonwealth‘s case and at the close of all the evidence, the defendant moved for a required finding of not guilty. The judge denied both motions. At the charge conference, the defendant argued that a jury instruction on extreme atrocity or cruelty should not be given because the judge refused to permit evidence of the prior violent relationship between the victim and Ortiz, thereby denying the defendant the opportunity to present evidence of his state of mind and have the jury determine whether the killing was committed with extreme atrocity or cruelty. The judge denied the defendant‘s request. The defense theory was that the four other residents of the apartment conspired to convict the defendant.
2. Right to a defense.
The defendant argues that the judge‘s declining to admit evidence of the victim‘s prior violent relationship with Ortiz was an abuse of discretion because the evidence was admissible under Massachusetts common law, and that the defendant‘s cоnstitutional right to present a defense was violated. The Commonwealth argues that the judge properly excluded the evidence because the defendant failed to make a sufficient proffer as to the prior acts of violence, and the evidence was insufficient to support a claim of self-defense, defense of another, or manslaughter based on reasonable provocation. We agree with the Commonwealth.
“The Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights guarantee a criminal defendant‘s right to present a defense.” Commonwealth v. Dagenais, 437 Mass. 832, 839 (2002). However, this right is not absolute. “In the face of ‘legitimate demands of the adversarial system,’ this right may be tempered according to the discretion of the trial judge.” Commonwealth v. Carroll, 439 Mass. 547, 552 (2003), quoting Commonwealth v. Edgerly, 372 Mass. 337, 343 (1977). The judge refused to admit evidence of the victim‘s prior violent relationship with Ortiz because he concluded that the evidence was irrelevant in the absence of
Evidence of prior violent acts committed by the victim “known to the defendant at the time of the homicide” may be introduced in evidence when a claim of self-defense is raised “to support his assertion that he acted justifiably in reasonable apprehension of bodily harm.” Commonwealth v. Fontes, 396 Mass. 733, 735-736 (1986). However, “[t]he incidents must not be remote (a discretionary matter for the trial judge) and other competent evidence must raise the question whether the defendant may have aсted justifiably in his own defense.” Id. at 736.
Here, the defendant did not establish when in time the prior acts of violence took place in relation to the murder, nor did he provide any details as to specific incidents. The defendant‘s proffer was merely that there was a “long term relationship” between the victim and Ortiz and that “he beat her pretty regularly.” Defense counsel stated merely that he may inquire about one or two incidents but hoped that he did not have to “go into specific incidents.” He did not offer any details of the victim‘s prior аcts of violence. This proffer was not sufficient. See Commonwealth v. Campbell, 51 Mass. App. Ct. 479, 481-482 (2001).
Moreover, even if the proffer were sufficient, there was insufficient evidence that the defendant acted justifiably in his own defense. In order for self-defense to be a viable issue at trial, there must be sufficient evidence to create a reasonable doubt that the defendant “(1) had reasonable ground to believe and actually did believe that he was in imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force, (2) had availed himself оf all proper means to avoid physical combat before resorting to the use of deadly force, and (3) used no more force than was reasonably necessary in all the circumstances of the case.” Commonwealth v. Harrington, 379 Mass. 446, 450 (1980). In this case, viewing the evidence in the light most favorable to the defendant, the evidence does not show that the defendant acted justifiably in his own defense. Commonwealth v. Pike, 428 Mass. 393, 395 (1998).
A defendant must avail himself of all proper means to avoid a
Nor was there evidence to support a theory of defense of another. An individual may be justified in using deadly force against a person in defense of another when “(a) a reasonable person in the actor‘s position would believe his interventiоn to be necessary for the protection of the third person, and (b) in the circumstances as that reasonable person would believe them to be, the third person would be justified in using such force to protect himself.” Commonwealth v. Martin, 369 Mass. 640, 649 (1976). Although there was evidence of a threat made inside Ortiz‘s bedroom, the threat was directed at the defendant, not Ortiz. There was no evidence that the victim threatened Ortiz, either in the apartment or on the landing. Alvarado was the only witness who testified that she heard some arguing and yelling between a male and female; however, it is unclear whether the defendant was in the apartment at that time. Despite the fact that the defendant told Ortiz that he was trying to protect her, a reasonable person in the
Last, there was insufficient evidence of adequate provocation to support a voluntary manslaughter instruction. “A voluntary manslaughter instruction based on provocation is appropriate ‘if there is evidence of provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused‘s temper to cool.‘” Commonwealth v. Colon, 449 Mass. 207, 220 (2007), cert. denied, 552 U.S. 1079 (2007), quoting Commonwealth v. Andrade, 422 Mass. 236, 237 (1996). Although there was evidence that the victim threatened the defendant inside Ortiz‘s bedroom, the victim did not lay his hands on the defendant, nor did he have a weapon at the time he was shot. The only conceivable threat to the defendant was when the victim said that he would “blow his head off.” Words alone generally do not amount to sufficient provocation.9 Commonwealth v. LeClair, 429 Mass. 313, 316 (1999). Even if these words caused the defendant to “lose his self-control in the heat of passion,” the defendant had adequate time to compose himself and cool his temper in the forty-five minutes between the confrontation and the shooting. Colon, 449 Mass. at 220. During that time, the defendant left the apartment and returned with a loaded firearm. “Our cases suggest that even where sufficient provocation exists, if a defendant leaves the scene of the provocation (as here) and then returns to attack the victim, the defendant is considered to have had adequate opportunity for his anger to subside.” Commonwealth v. Keohane, 444 Mass. 563, 568 (2005). Even if adequate provocation existed, the defendant had a sufficiently reasonable amount of time to cool off. A voluntary manslaughter instruction was not warranted.
Because there was insufficient evidence to support a theory of self-defense, defense of another, or sufficient provocation, evidence of a prior violent relationship between the victim and Ortiz was not relevant. The judge did not abuse his discretion in excluding such evidence, and the defendant‘s constitutional right
3. Prosecutor‘s closing argument.
The defendant contends that certain comments made by the prosecutor during his closing argument unfairly prejudiced him where the prosecutor invited the jury to draw inferences from the absence of evidеnce regarding the victim‘s prior violence toward Ortiz that the Commonwealth successfully requested to exclude. Additionally, the defendant argues that the prosecutor took advantage of the absence of the evidence. We disagree.
The defendant takes issue with the comments made by the prosecutor in his closing argument to the effect that the defendant shot the victim because he was jealous, angry, humiliated, and embarrassed.10 Because defense counsel requested a mistrial at the conclusion of closing arguments, we review for prejudicial error. Commonwealth v. Hrabak, 440 Mass. 650, 653-654 (2004).
In the closing arguments, a prosecutor may argue the evidence, draw conclusions, and assist the jury in evaluating and analyzing the evidence. See Commonwealth v. Burgess, 450 Mass. 422, 437 (2008); Commonwealth v. Johnson, 429 Mass. 745, 750 (1999). However, “[a] prosecutor is barred from referring in closing argument to matter that has been excluded from evidence . . . and a prosecutor should also refrain from inviting an inference from the jury about the same excluded subject matter” (citation omitted). Commonwealth v. Grimshaw, 412 Mass. 505, 508 (1992). Additionally, a prosecutor may not exploit the absence of evidence that was excluded at his or her request. Commonwealth v. Harris, 443 Mass. 714, 732 (2005). In this case, the defendant concedes that the prosecutor never made a direct reference to the excluded evidence (prior violent relationship). Rather, he contends that the prosecutor took unfair advantage of the absence of excluded evidence when arguing motive, which the defendant could not contradict without the excluded evidence. We disagree.
The prosecutor was responding to defense counsel‘s closing argument where he said that the four other occupants of the apartment conspired to convict the defendant. The prosecutor was
Even if the prosecutor‘s statements were improper, they do not warrant reversal. See Commonwealth v. Wilson, 427 Mass. 336, 353 (1998). Ortiz was standing on the landing with the victim when the defendant opened the door and shot the victim. Vega, prior to the defendant‘s shooting the victim, received three telephone calls from the defendant. In the first call the defendant asked Vega to drive him up the street to get a gun. In the second and third calls, after the defendant left the apartment, the defendant told Vega that he was around the corner and he asked her to tell the victim not to go anywhere. She then saw the defendant return and look out the peephole of the front door, all the while with a “large, brown” gun in his hand. Alvarado saw the defendant raise the gun and shoot the victim as she was running into Vega‘s room. The prosecutor‘s statements were inconsequential in the face of the overwhelming evidence of deliberate premeditation. Moreover, the judge instructed the jury that closing arguments were not evidence, that they must base their decision on the evidence as they recalled it, and that they alone were the judges of the facts. Additionally, the judge instructed the jury thаt motive was not an element of the murder but that evidence of motive may be helpful in their analysis of the case. The defendant suffered no prejudice by the comments made by the prosecutor in his closing statement.
4. Defendant‘s state of mind.
The defendant urges us to adopt the concurring opinion of then Justice Gants in Commonwealth v. Berry, 466 Mass. 763, 777 (2014) (Gants, J., concurring), and conclude that a defendant‘s state of mind, or intent, must be
5. Review under G. L. c. 278, § 33E .
Having reviewed the entire record, we discern no basis to grant the defendant a new trial or reduce the degree of guilt.
Judgment affirmed.